Herriford v. Herriford
| Decision Date | 07 April 1913 |
| Parties | JOE E. HERRIFORD, Respondent, v. MARY FRANCES HERRIFORD, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Jas. E. Goodrich, Judge.
AFFIRMED.
Judgment affirmed.
Chas H. Calloway and Walter W. Calvin for appellant.
(1) Plaintiff, respondent, should have been denied a decree because the testimony disclosed that he was guilty of misconduct in that he connived at and procured the acts to be done and committed for and upon which he predicated his right to a divorce; and this cause should, therefore, be by this court reversed with directions that plaintiff respondent's bill be dismissed. 14 Cyc. 644; Nagel v Nagel, 12 Mo. 53; Golding v. Golding, 6 Mo.App. 602; Morrison v. Morrison, 62 Mo.App. 299; Torlotting v. Torlotting, 82 Mo.App. 192; Vietrel v. Vietrel, 86 Mo.App. 494; Torlotting v. Torlotting, 97 Mo.App. 183; Vietrel v. Vietrel, 99 Mo.App. 710; Libbe v. Libbe, 157 Mo.App. 701; Bailey v. Bailey, 17 Cent. Dig. 162; Morrison v. Morrison, 136 Mass. 310; Wilson v. Wilson, 154 Mass. 194, 12 L. R. A. 524; People v. Chapman, 62 Mich. 280; Dennis v. Dennis, 68 Conn. 186, 34 L. R. A. 449. (2) The finding of the trial court upon the issues involved in this action is not binding or conclusive upon this court, and this court will examine the evidence for itself and reach its own conclusions therein. 14 Cyc. 734; 44 Iowa 192; Rhodes v. Rhodes, 95 Mo.App. 327; Schuman v. Schuman, 93 Mo.App. 99; McCann v. McCann, 91 Mo.App. 1; Endesley v. Endesley, 89 Mo.App. 596; Jennings v. Jennings, 85 Mo.App. 290; Strahorn v. Strahorn, 82 Mo.App. 580; Groves v. Groves, 79 Mo.App. 142; Lawlor v. Lawlor, 73 Mo.App. 637; Torlotting v. Torlotting, 82 Mo.App. 192; Libbe v. Libbe, 157 Mo.App. 706.
L. A. Knox, W. C. Hueston and Lewis A. Chapman for respondent.
(1) The vile and foul names applied to respondent by appellant, in the presence of respondent's children, and in the presence of strangers, accompanied with assaults and attempted assaults, together with the contemptuous treatment of respondent by appellant, were sufficient indignities to render respondent's condition intolerable and upon which to predicate a decree of divorce in his favor; such indignities being such as are recognized by the statutes. Ryan v. Ryan, 137 S.W. 1014; Motley v. Motley, 93 Mo.App. 473; Goodman v. Goodman, 80 Mo.App. 274; Lynch v. Lynch, 87 Mo.App. 32; Blair v. Blair, 131 Mo. 571. (2) The finding and judgment of the court was neither against the law nor the evidence. Where the defendant in a divorce proceeding, by her conduct, has furnished cause which the statute declares to be sufficient to entitle plaintiff to a divorce, he has a right granted by law to a decree where he is not in fault. Hamberg v. Hamberg, 147 Mo.App. 591; Miles v. Miles, 137 Mo.App. 38; Wares v. Wares, 122 Mo.App. 129; Wald v. Wald, 119 Mo.App. 341. (3) A finding of a court in a divorce action on conflicting evidence of witnesses in open court will not be disturbed on appeal. Myer v. Myer, 158 Mo.App. 300; Stevenson v. Stevenson, 29 Mo. 95. Where testimony was oral and is conflicting, on account of the superior advantage possessed by the trial judge for weighing the testimony and judging of its credibility, an appellate court will give much deference to his conclusions of fact. Torlotting v. Torlotting, 82 Mo.App. 192; Clark v. Clark, 48 Mo.App. 157.
--Suit by a husband for divorce. The parties are members of the negro "four hundred" of Kansas City, and occupy places of prominence among the people of that color throughout the State.
Divorce is sought upon the ground of indignities. The wife in a cross-bill prayed a divorce on the same grounds. The trial court heard the evidence on both sides and awarded plaintiff the divorce and dismissed defendant's cross-bill. Defendant appeals, praying this court to reverse the judgment of the trial court and dismiss plaintiff's petition.
Appellant's position apparently is, not that the evidence shows she should have the divorce, but that plaintiff connived at the acts of which he complains and is therefore not entitled to a decree in his favor. In fact, there is nothing in the evidence on which a divorce could be granted appellant as there were no indiginities to her proved unless, indeed, the alleged connivance be established, in which case the husband, by reason of the peculiar facts herein, would be guilty of a most atrocious indignity. So that, the only question here is, was there connivance on the husband's part?
To properly understand this question the charges in the petition should be kept in mind. They were: That although defendant, at the time of her marriage, knew plaintiff was a widower with four small children, and although after said marriage said children were obedient and respectful to her and performed their home duties cheerfully and well, still defendant had a strong aversion to them, punished them unnecessarily, neglected them in needful matters, told plaintiff the children would not be allowed to share in his affections, and finally compelled plaintiff to send them, one after another, away from home in order to secure domestic peace and quiet; that, owing to defendant's ungovernable temper and its outbursts wholly unprovoked by plaintiff, she has made his home a place of constant turmoil and confusion; that defendant has assaulted and attacked plaintiff, cursing and abusing him and calling him and his children vile names; that at one time she attempted to stab him with scissors and on another occasion drew a revolver on him and threatened his life; that by reason of defendant's conduct, when away from home and in the presence of strangers, she was made the subject of gossip among friends and acquaintances of plaintiff throughout the State, causing him great humiliation and mortification; that she corresponded with, paid attention to, visited and entertained a certain man named Jones; that she was caught by the husband in Jones' rooms under circumstances which, while they did not show adultery on that particular occasion, yet they were such as to constitute such visit and conduct an indignity; that by reason of all which acts and course of conduct on the part of defendant, plaintiff's peace of mind and domestic comfort has been wholly destroyed, his capacity for discharging his professional, social and parental duties have been greatly impaired and his condition rendered intolerable.
The testimony is very voluminous, consisting of over 876 pages of closely printed evidence, which we have carefully gone over in order to see for ourselves whether or not justice has been administered between these colored litigants.
It is unnecessary to set forth even a resume of this evidence. Suffice it to say, that in our opinion all the indignities charged, with the exception of those charging improper conduct with stangers and with the man Jones, were established and fully corroborated by disinterested witnesses in addition to plaintiff's own testimony.
Defendant's contention is that those indignities thus established, if they were indignities, occurred years ago and were condoned by plaintiff; that in reality they were mere trivial matters exaggerated for the purpose of securing a divorce; that plaintiff had before this filed two other suits for divorce but had abandoned them because he did not have sufficient grounds on which to prevail, and that finally the charge of unseemly conduct was made in order to secure sufficient grounds and that plaintiff cannot get a divorce on this ground because he connived at it.
The case was tried on a third amended petition filed by plaintiff, and, while the other petitions are not preserved in the record, we assume that the charge of unseemly conduct with strangers and the catching of defendant in Jones' room were not included in the grounds of divorce until the third amended petition was filed.
The matters hereinbefore enumerated, as having been established by corroborative testimony, constitute indignities sufficient to entitle complainant to a divorce. [Rose v. Rose, 129 Mo.App. 175, 107 S.W. 1089.] As to whether a condonation will deprive them of vitality or not depends on the conduct of the offending party after the condonation. Condonation is forgiveness on condition that the offense be not repeated. If this condition is not kept, the right of the injured party to urge the condoned indignities as grounds for divorce is restored. [Viertel v. Viertel, 123 Mo.App. 63, 99 S.W. 759.]
Defendant's theory is that, by dismissing the two former suits, and by abandoning the first two petitions in this suit, plaintiff admits that his grounds therein stated were insufficient and the charges baseless; but the evidence shows that these former suits were dismissed upon solicitation of defendant and on her admission that she was in the wrong and her promise to do better in the future. There is nothing to show why the third amended petition was filed, and, in the absence of such showing, we assume it was to include the visit to Jones' rooms as an additional indignity, as it occurred after the filing of the original petition.
The last and final separation and the institution of the present suit took place before the commission of the alleged acts of connivance charged against plaintiff, and hence it might not be unwarrantable to say that if the testimony is found sufficient to establish these other less immoral indignities not connected with Jones, we perhaps could affirm the judgment of the trial court for that reason. But inasmuch as plaintiff's connivance, if proved, would greatly weaken his charge of these other and lesser indignities and would show that he himself placed no reliance in them as...
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